Select Committee on Public Administration Minutes of Evidence

Examination of witnesses (Questions 520 - 539)



  520.  If it is excluded there is no test.
  (Mr Straw)  You may then come to the view that in place of this structure there should be a simple harm test and fewer exemptions. That is a matter for you and not for me. The Government has put forward this set of proposals saying we should distinguish more in advance between what is excluded and what is then included subject to exemptions.

  521.  All I am putting to you is that in certain foreign jurisdictions, which are not known for their liberalism towards the criminal or possible criminal fraternity, such as the USA, they have managed now for some 12 years with an exemption, which means that law enforcement activities are testable in the court as to whether they should be disclosed or not; whereas what you are proposing is a much less liberal regime than that which has operated in the United States since 1986. I can supply you with the document, which I am sure the government has already, called the Freedom of Information Act Guide and Privacy Act Overview from the United States Office which goes into this.
  (Mr Straw)  I am sure there is such a document but in this area of international comparison above all a little knowledge, with great respect, is a dangerous thing. Secondly, we have to make our own decisions.

Mr Tyrie

  522.  That is not a very happy line for someone who is talking about freedom of information.
  (Mr Straw)  I think it is. In any event, we have to make our own decisions about what we think is appropriate in this country, within our circumstances and within our culture. I happen to believe that what is said in this White Paper strikes the appropriate balance. We cannot be led all the time by international examples. There are plenty of things happening in American criminal jurisdiction which nobody round this table would wish to see.

Mr Bradley:  But is there not a distinction? I agree we should not always be led by other nations' examples because, after all, we should not lose sight of the fact that the proposals of freedom of information are, for a large part, exemplary and go a lot further than most——

Mr Shepherd:  We do say that.

Mr Bradley

  523.  —— although within that context there is a fairly narrow field. But is there not a distinction between criminal activity and public order? It is quite interesting that most of the examples that we have raised have had to do with public order and not criminal activity.
  (Mr Straw)  With great respect, Mr Bradley, I think you as a new Labour member of this Committee should be the last person to suggest that there is a clear distinction between criminal activity and public order, given the fact that so much criminal activity arises from an absence of public order, namely disorder. The two are often inextricably linked. It is just there. You cannot separate these. What may start off as a peaceful demonstration, on a matter of public interest, can, as everybody knows, deteriorate into gratuitous criminal activity.

  524.  The right to know, freedom of information that we are talking about, is not the right to know what the crowd is thinking. It is the operational activities of the police. In the 1980s and in the early 1990s new and old members of the Labour Party and others had a great deal of criticism to level at the police and other authorities in the way they managed crowds; peaceful demonstrations, which for the large part, were peaceful. It was quite a legitimate criticism to make. It was quite legitimate to ask what orders the police had issued, which led to problems in that crowd control. We are not talking about criminal activity. We are not talking about organised crime, the prevention thereof or the detection thereof. We are talking about how citizens are free to go about their lawful purposes and how their relationship with the police can sometimes break down; and to what extent the fault may be on the police's part and how those lessons can be understood and learned.
  (Mr Straw)  All those areas seem to be ones which are appropriate for the police complaints and discipline procedure. In the light of an advance Select Committee report I have announced major changes in that area. I have also, as part of that, accepted the case, in certain circumstances, for there to be greater openness about the publication of reports to the Police Complaints Authority. So far as one report is concerned, which was the report in the Lawrence inquiry, I ensured that an albeit modified version of the report was made public and a more detailed version is available to that inquiry. That is the way to deal with those matters, as well as through the policing plans of the chief constable and police authority; and, let me say, which will have quite an impact on this, the very public discussions which will take place about local policing under the partnership arrangements of the Crime and Disorder Bill.


  525.  I will ask one last question now before I turn the questions over to Ronnie Campbell, which I hope you will be able to help me with. This is where you have sent a submission to us. In paragraph 8 of the Home Office submission you referred to areas which you believe need to be excluded. Going beyond exclusion for law enforcement, you then go on to refer to the security of detained persons. You say in paragraph 8: "Information related to the security of detained persons, or of secure buildings will also need to be clearly covered by exclusions from the proposed scheme." That is, total exclusion of information related to the security of detained persons. Now, in the White Paper it refers to the fact that the administrative functions of the police will be covered by the Act; in other words, will be potentially disclosable. Would the administrative functions of the police, for instance, cover deaths in police custody? If it does, and I assume it does but I could be wrong about that, then how does that stack up with your reference to the fact that the security of detained persons should be excluded?
  (Mr Straw)  We are dealing with the distinction between the general and the particular. The arrangements for dealing with prisoners in police stations, including those who are requiring medical treatment, ought to be made public. There is no reasons at all why they should not be. Indeed, on the whole they are. Those arrangements, under the Police and Criminal Evidence Act, for the proper operation of custody suites and the rights of prisoners to prompt medical treatment and so on, as far as practicable should be made public. A different issue arises where you have a particular case. If there is a death in custody then a number of investigations take place. You are then led into the area of judicial proceedings, and disclosure at that stage will have to come through the judicial rules of disclosure and those relating to police complaints rather than, it seems to me, within the framework of the general Freedom of Information Act. But there are quite strong rules on disclosure, in any event, in this field.

Mr Campbell

  526.  May I bring in the Security Service, MI5 basically. I know you have looked at the Green Paper on Information and obviously you have put in your penn'orth as Cabinet Minister, and we are all dying to see what has been cut out and what has not been cut out. This is a very liberal Bill and when Mr Shepherd and I were in Canada the other week they thought it was a very liberal Bill.
  (Mr Straw)  It certainly goes further than some foreign administrations. It certainly goes farther than France, may I say, if we are looking to international comparisons.

Mr Campbell:  We shall have to wait and see when the paper comes out.

Mr Shepherd

  527.  And the old Soviet Union too.
  (Mr Straw)  I think that would be very damaging to our relations with France to compare France with the old Soviet Union.

Mr Shepherd:  I did not. I was just looking at your analogies.

Mr Campbell

  528.  I would like to raise the question of personal files in the Security Service sense. I just wonder what your views are on what should be exempt and what should be in one's personal file.
  (Mr Straw)  Given the nature of the business in the Security Service, I do not believe that any part of what they do could come within the framework of a freedom of information regime. Under the Security Services Act 1989 their job is related to national security, which these days includes economic well-being of a country; and under the 1996 Act they can also look into investigations of serious crime. I have thought about this a great deal. It is not something where I have just followed the line. I have taken a close interest in the work of the Service. It is a small Service. Everything it does is related to its 1989 and 1996 objectives. I think that if there were a breach in the exemption, that could undermine its operational effectiveness. That is my judgment.

  529.  Let us take the case of Arthur Scargill. As you know, he was the leader of the 1994 Miners' Strike. When he tried to get information, which was supposed to be contained, from a bloke called David Shayler.
  (Mr Straw)  I have heard of Mr Shayler, yes.
  (Mr Straw)  He tried to get information from him because he is a defector of MI5. He has told Arthur basically that they hold four volumes of information on Arthur Scargill; him personally, personal information on him. Do you not think it is right that Arthur Scargill should, under the Act, be able to get that information which is held on him? I know you might say he is a security risk, but I would not think that Arthur Scargill is a security risk now. He might have been a few years ago but he is not now.
  (Mr Straw)  Let me talk in general terms about personal files.

  530.  I would like to know what is on me!
  (Mr Straw)  Information is the business of Security Services. They have to be able to gain information, partly through perfectly overt means like reading the newspapers, in so far as they are a source of reliable information, and partly through covert means. That includes interception; various kinds approved under a framework laid down by Parliament; and surveillance, which is also a framework laid down by Parliament; and the use of informants and agents. What is on any file that the Security Service has is information which has come from both overt and covert sources. Their work would be rendered impossible if the subjects of those files were able to have access to them. It would literally be impossible.

  531.  Surely, Home Secretary, you are not telling me that files on Arthur Scargill, at this moment in time, are going to be any danger to the country? It cannot be.
  (Mr Straw)  First of all, it is never the practice of Ministers or the Security Service to say whether or not there is a file on any individual person. The only person I can tell you there happens to be a file on is myself when I was positively vetted. Mr Shayler disclosed this and this was made public. I was told and then Mr Shayler disclosed this. I have not asked to see my file. I think it would be wholly wrong for me to do so because that would be to abuse my position as Secretary of State.

  532.  I am not talking about you, I am talking about Arthur Scargill. Arthur Scargill has requested that information and he has been refused.
  (Mr Straw)  It is the same point. I have not asked to see my file as Secretary of State because that would be to provide me with a privilege which is not available to any other ordinary citizen. It would also be unjustified for me to do so. My judgment must apply, therefore, to anybody else who has been the subject of activity by the Security Service in the past.

  533.  Quite honestly, I do not know where you are coming from, Home Secretary. What you are telling me is that what the Security Service have on any person in the land, they are not going to get if you say there is going to be a blanket exemption on MI5, end of story.
  (Mr Straw)  There would be a separate issue, which was dealt with in an adjournment debate a couple of months ago, which relates to the circumstances in which files held by the Security Service should, at an appropriate moment, be placed in the Public Record Office. The Security Service has a large number of files. We are currently conducting an exercise as to whether some files should be destroyed altogether, and individuals concerned for their privacy would probably argue that they should. On the other hand, there is a genuine historic interest in a lot of these files.

  534.  There would be in Arthur Scargill's file, I am sure.
  (Mr Straw)  A balance, therefore, has to be made. We are making careful arrangements for as early release as possible of these files into the Public Record Office—but that is going to be some decades, let me say, and I will explain why—alongside the destruction of files which have no historic value. One of the first Parliamentary Questions I was asked, when coming into office, by Mr Norman Baker, who was an ever assiduous questioner in relation to the Security Service, was what was the oldest file which the Home Office held, which was still classified as secret. The answer which was put up to me was 1874. This was a file held by the then Irish Secret Service. I asked for this series of files to be reviewed because this date, 123 years on, seemed to be that there was probably little argument for retaining the file. But what is interesting is that it was agreed that the file should be placed in the Public Record Office, but I also agreed that the names of informants should be deleted from the record because even 123 years later there will be families in the geographical areas of Northern Ireland to which these files relate, who will have relatives and who could use the information again from that file to pay-off old scores. So memories do last long and it is very, very important if one is running the Security Service—and this also applies to the police—always to maintain the integrity and the confidentiality of those who are providing you with information.

  535.  I can see where you are coming from, but basically the argument is that the Security Service is not going to get the information because it is not going to be in the White Paper.
  (Mr Straw)  I do not believe it should be. I think that the Security Service cannot operate unless it operates in secrecy. That said, quite a lot of information——

  536.  But when it is somebody as old as Arthur Scargill—he is coming to his retirement shortly—that information is still held on him. Surely if he is no threat to the country, he is no threat to security, if he is a threat and somebody comes along with information to the commissioner, if he is a threat then I would understand that; but if he is not a threat why keep the information?
  (Mr Straw)  With great respect to you, Mr Campbell, I am not going to discuss files held on Mr Scargill. What I do want to talk about is the general issue here. Let us take a case of a file that is 20 years old, for example. The information about the activities of an individual held in that file may not be current, but certainly what would be current would be information about the operational arrangements of the Security Service. Their methods would be highly current and of very great interest to criminals or those who are trying to compromise the country's national security. That is the argument about maintaining confidentiality. It is the argument even about maintaining the confidentiality of the agents who gave the Irish Secret Service information in 1874. These are not idle points at all.


  537.  You may have seen the evidence given to us by the Data Protection Registrar on this point, where she made the point that given that MI5 and MI6 are now becoming used by the machinery of the State for ordinary law enforcement purposes, when they are being used for ordinary law enforcement purposes they should come under the scope of the Data Protection Act. Do you accept that point, or have you considered that point since the Data Protection Registrar gave that evidence?
  (Mr Straw)  I am considering the point, at the moment, is my answer. I just make this point, if I may. The Security Services' activities under the 1996 Act, in support of investigations of serious crime, are actually very far from ordinary. It is true. There are not very many investigations conducted by the Security Services under that now. They are tasked by the National Intelligence Service and only by NSIS when NSIS believes that the Security Service has some experience or techniques which would not be available, for one reason or another, to the police. So it is a very limited and particular facility and quite out of the ordinary.

Mr Ruffley

  538.  I am delighted to welcome you here, Home Secretary. We are both lawyers and both political advisers. We both believe in freedom of information and you support Tory rule and policies as well so I am delighted you are here. Are the personal files held by MI5 on you going to be destroyed?
  (Mr Straw)  I have no idea. Nor do I believe that I should be involved in that decision at all, any more than I should be involved in any other Ministerial decision which would affect me personally.

  539.  Who will make that decision and when?
  (Mr Straw)  What we are doing, and a good deal of work is going on in this, is looking at the file retention and destruction policies of the Security Service. I hope, as I said in the debate initiated by your colleague, Julian Lewis, a couple of months ago, to make an announcement about this before the end of the summer. We are looking at the policy of destruction of files and their retention. How they are to be reviewed. In other words, which should be destroyed and which should be placed in the Public Record Office, if necessary (using that ugly American phrase) with redactions, which means words or parts deleted. There is a group of experts to look at these. I am also looking at the methods as well. I am on the case so I am sorry but I cannot give you more details at the moment because I have not made final decisions about it.

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